Bugs in the Copyright Code, redux (was: Rights to live performances / fixation)

On Thu, 8 May 1997, Jonathan D. Taft <jon[_at_]taft.com> wrote:
>
> How can this work? Since "fixation" requires "authority of
> the author", then how can an unauthorized reproduction every be a
> "copy" under the statute, since a "copy" must be "fixed" -- which
> requires "authority". Hence, the code loaded into RAM in the MAI
> case is not a copy, and therefore can not be infringing, since it was
> unauthorized and so not fixed.

The only reasonable way to read the definition of "fixed," I fear, is to completely ignore the phrase "by or under the authority of the author" when construing what is a "copy" in a 106(1) infringement context, and give operation to phrase only in the 102(a) subject matter context. After all, the authority of the author (who may or may not be the copyright owner) is irrelevant in an infringement context.

As you point out, otherwise, the only way you can have a 106(1) infringement are the cases where a) a copyright has been assigned (so that the author and the copyright holder are not the same person; b) the author has purported to give authority to the copier to copy the work; and c) the copyright owner has not authorized the copying.

I've noted this anomaly before (see the attached message). It's odd that this obvious error could survive so many drafts and redrafts.

--
Terry Carroll       | "The invention provides means for continuously
Santa Clara, CA     | trapping sparrows and supplying a cat and 
carroll[_at_]tjc.com     | neighborhood cats with a supply of sparrows."
Modell delenda est  |                - U.S. Patent no. 4,150,505


---- forwarded message ----
Date: Mon, 15 Apr 1996 13:41:53 -0700 (PDT)
From: Terry Carroll <carroll[_at_]aimnet.aimnet.com>
To: cni-copyright[_at_]cni.org
Subject: Bugs in the Copyright Code

On Sat, 13 Apr 1996, Dennis Karjala wrote:


> 

>      Again nitpicking the language:  . . .


Of course, it's possible to nitpick the language a bit too much.  If 
you really want to nitpick the language of the copyright act, it's 
kind of interesting to note that, taken literally, copyright does not 
prohibit making unauthorized copies. 

Section 106(1) establishes the exclusive right "to reproduce the 
copyrighted work in copies or phonorecords."  This subsection is violated 
only if the resulting product is a copy or phonorecord.

"Copy" is defined in section 101: "'Copies'' are material objects, other 
than phonorecords, in which a work is fixed by any method now known or 
later developed, and from which the work can be perceived, reproduced, or 
otherwise communicated, either directly or with the aid of a machine or 
device."  Note that, for a material object to qualify as a copy of the 
work, the work must be fixed in that object.  The definition of 
"phonorecord" has the same fixation requirement.

"Fixed" is also defined in section 101: "A work is 'fixed' in a tangible
medium of expression when its embodiment in a copy or phonorecord, by or
under the authority of the author, is sufficiently permanent or stable 
to permit it to be perceived, reproduced, or otherwise communicated for 
a period of more than transitory duration."  Note the requirement that, 
for a work to be considered fixed in a copy or phonorecord, the fixation 
must be made "under the authority of the author."  If the fixation is 
not made under such authority, it's not a fixation for purposes of the 
section 101 definition. 

Therefore, taken literally, if a reproduction is not authorized by the
author, it is not fixed, and therefore is not a copy, and therefore the
reproduction is not a reproduction in copies, and is therefore not an
infringement. 

And, no, I don't really believe this, but it would be an interesting 
move of desperation to watch someone make, wouldn't it? 

--
Terrence J. Carroll 
Attorney at Law                                      ph: 415/843-5090
Cooley Godward Castro Huddleson & Tatum             fax: 415/843-0663
Five Palo Alto Square            email (office): carrolltj[_at_]cooley.com
Palo Alto, CA 94306-2155         email (personal):    carroll[_at_]tjc.com